State Consumer Disputes Redressal Commission
Dr. Latika Nagpal vs Anshul & Another on 10 October, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 97 of 2020
Date of institution : 12.02.2020
Reserved on : 29.08.2023
Date of Decision : 10.10.2023
Dr. Latika Nagpal, Nagpal Nursing Home, Abohar, District Fazilka
....Appellant/OP No.1
Versus
1. Anshul, aged 25 years, wife of Abhinav Kukkar, resident of
House No. 212, Tata Estate Electricity Board, Abohar, District Fazilka
....Respondent No.1/Complainant
2. The Oriental Insurance Company Limited, DO 3, 4E/14, Azad
Bhawan, Jhandelwalan Ext. New Delhi-110055 through its Authorized
Signatory.
....Respondent No.2/OP No.4
First Appeal under Section 15 of the
Consumer Protection Act, 1986 against the
order dated 08.11.2019 passed by the District
Consumer Disputes Redressal Commission,
Ferozepur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. David Sardana, Advocate for Sh. Puneet Sharma, Advocate with Dr. Latika Nagpal, in person For respondent No.1: Sh. Parvez Chugh, Advocate For respondent No.2: Sh. Sahil Abhi, Advocate First Appeal No. 97 of 2020 2 SIMARJOT KAUR, MEMBER :
Appellant-Dr. Latika Nagpal (OP No.1 before the District Forum, now District Commission), has filed the present appeal under Section 15 of the Consumer Protection Act, 1986, being aggrieved with the impugned order dated 08.11.2019 passed by the District Consumer Disputes Redressal Commission, Ferozepur (in short, "the District Commission"). The District Commission had allowed the complaint against OP No.1 and OP No.1 was held liable to pay the compensation to the complainant whereas the complaint qua to opposite party No.4 was dismissed.
2. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by respondent No.1/complainant in the complaint filed before the District Commission are that the complainant was pregnant. The complainant approached OP No.1 on 06.04.2017, after her medical check-up as she was informed that normal delivery would be conducted. On the assurance given by OP No.1, on 08.04.2017 the complainant was admitted in OP No.1 Hospital for normal delivery. Later on OP No.1 told her that she had to undergo caesarean operation. Under the pressure of OP No.1, the family members of the complainant had deposited the amount as demanded for delivery and had also signed many documents. Thereafter, the caesarean of the complainant was done. It was pleaded that after 15/20 minutes of conducting the First Appeal No. 97 of 2020 3 caesarean, the complainant felt uneasiness. The nurse was informed about the said problem and she was told it would settle after sometime. She was also informed that such problems were normal in these type of cases. After sometime OP No.1 had checked her for extreme bleeding and she was taken in the operation theatre again. The family members of the patient were asked to make arrangement of blood for the patient. OP No.1-Doctor had informed after some time that there was some defect in the uterus and pressurized the complainant's family to give their consent for its removal. Upon pressure of OP No.1-Doctor, complainant's family had agreed to give consent for removal of uterus, it was removed after an operation which lasted for three hours. Thereafter, the complainant was shifted to ICU. On the next day, the patient complained of pain in the stomach. Though the Doctor gave her pain killer still the pain remained for 3-4 days and she was not having any relief. The Doctor had again checked her for the said problem and advised an ultrasound. After seeing the report, the Doctor had enquired as to whether the complainant was having any kidney problem, the patient informed her that she had never suffered from any kidney problem. Subsequently on 18.04.2017, the complainant was discharged from the Hospital. She had continuously faced the problem of pain in her stomach. Thereafter, she approached Loona Nursing Home, Abohar, where Dr.Vaneet Loona checked her. Again the complainant's ultrasound was done from Punjab C.T. Scan, Abohar on 25.04.2017 by Dr. Ajay Bhura, M.B.B.S. M.D. (Radio-Diagnosis) had reported First Appeal No. 97 of 2020 4 that the complainant was having two stones in her right kidney and one stone in the left kidney. Thereafter, Dr. Vaneet Loona had started the medicine, but the complainant still did not get any relief from the pain. Thereafter, the complainant visited Delhi Heart Hospital, Bathinda on 05.05.2017 for her check-up, where her C.T. Scan was done. As per the report of the C.T. Scan, she was informed that her right ureter (mentioned as uterus in the complaint) was stitched. The complainant had informed to the said Doctor that the cesarean and hysterectomy were conducted by OP No.1. The Doctor informed her that due to the stitched ureter her urine was blocked in the kidney and in case it was retained in the kidney for next 2/3 days, it could have damage the kidney. The Doctor immediately inserted pipe/catheter for passing of the urine and also gave medicine to treat the infection. The doctor advised her to continue her medicine for 20-25 days and then surgery would be conducted from the said hospital. On 29.05.2017 the complainant approached Sir Ganga Ram Hospital Delhi, where Dr. Ajay Sharma conducted her X-ray and informed that the flout is not passing. The Doctor suggested surgery and scheduled it for 01.06.2017. But on the same night, the complainant suffered with the problem of vomiting and fever, due to that she was admitted in the Emergency Ward of the Hospital. After little improvement, on 03.06.2017, the surgery was conducted. Thereafter, she was shifted to ICU and later to the ward. On 06.06.2017, the complainant was discharged from the Hospital. Approximately Rs.18,00,000/- had been spent by her on the treatment.
First Appeal No. 97 of 2020 5
4. The said problem occurred due to negligence and carelessness on the part of opposite party No. 1 during the caesarean operation of the complainant. It was prayed in the complaint that due to deficiency in service and unfair trade practice on the part of opposite party No.1, the complainant suffered a lot. The opposite party No.1 was insured with opposite party No.4, it should therefore, indemnify for the negligence of the treating Doctor (OP No.1). Hence, the complaint had been filed for issuing direction to the opposite parties to pay Rs.18,00,000/- spent by the complainant on medical treatment and removal of fit part of the body (uterus), to pay Rs.50,000/- as compensation for mental agony, pain and harassment and Rs.11,000/- as litigation expenses.
5. During the hearing of the complaint before the District Commission, the complainant suffered a statement that opposite parties No.2&3 were unnecessarily impleaded, they be deleted from memo of parties. Therefore, vide order dated 20.09.2017, opposite parties No.2&3 were deleted in the complaint.
6. On issuing notice in the complaint, opposite parties No. 1 & 4 appeared and filed their separate written statements. Opposite party No.1 took preliminary objections that the complaint was false, frivolous and vexatious; no specific, scientific and justified evidence had been produced by the complainant to prove the allegations of negligence or deficiency in services offered by opposite party No.1 during the operation. Opposite Party No.1 was well qualified, reputed Doctor having sufficient experience in her medical field. In her reply to First Appeal No. 97 of 2020 6 the complaint, it had been pleaded by opposite party No. 1 that the patient visited her with 36 weeks + 4 days pregnancy with labour pain. She went into active phase of labour on 06.04.2017 at 12:15 PM. The fetal heart rate was dipping in between. As per vaginam cervix was appropriate for 36 weeks pregnancy. Due to fetal distress emergency, Lower Segment Caesarean Section (LSCS) of the patient was planned. At that time, no guarantee/warranty/assurance was given to the patient or her family members. Post LSCS the vitals of the patient were stable. At 3.30 PM in postpartum period the patient complained of restlessness, Per Vaginum (PV) bleeding also increased. The patient was managed medically with Oxytocics from 3.30 to 4.30 PM but the patient was unresponsive to the medical management, therefore, she had been taken to the Operation Theatre. In the OT, conservative surgical management was tried but that failed. Due to that the patient was taken up for emergency postpartum hysterectomy in view of refractory Postpartum Hemorrhage (PPH). Three units of blood were transfused and thereafter the patient was shifted from operation theatre in a stable condition. It was pleaded that during immediate post caesarean hysterectomy one unit of blood was transfused to the patient. Postoperative condition was uneventful. On 10.04.2017 again one unit of blood was transfused. The patient was discharged in a stable condition on 18.04.2017. But thereafter the patient never turned up for post-operative check-up as advised. The uterus had been removed while performing hysterectomy so there was no question of First Appeal No. 97 of 2020 7 stitching/blocking of uterus (ureter has been wrongly mentioned as uterus in the complaint). Moreover, there is no organ in the human body like right uterus as mentioned in the complaint by the complainant party. It was pleaded that the whole surgery had been done diligently, prudently and with utmost due care & caution. No Doctor in advance can predict intra-natal complications, which had occurred in the present case. Everything had been done as per medical standards and principles and complete care of the patient had been taken. However, the patient herself failed to follow post- operative advice. There is no negligence on the part of the opposite party No.1 and prayer for dismissal of the complaint was made.
7. Opposite party No. 4 in its separate written statement took the similar preliminary objections as raised by opposite party No.1. It was admitted that opposite party No. 1 had purchased two separate/different insurance policies i.e. for Rs.10 lacs and Rs. 5 lacs but the same were issued with certain exceptions and requirements, which have to be fulfilled by the assured Doctor. As per said policies, opposite party No. 4 is only liable to indemnify if any act committed by the professional and qualified assistant, named in the proposal engaged by the medical establishment, proved as mistaken and third party legal liability occurred in those circumstances.
8. After considering the contents of the complaint and the replies thereof filed by the opposite parties as well as on hearing the oral arguments raised on behalf of all the sides, the complaint filed by the complainant was allowed by the District Commission vide order First Appeal No. 97 of 2020 8 dated 08.11.2019. The relevant portion of said order as mentioned in Para-13 is reproduced as under:
"13. From the above discussion and arguments of parties and evidence produced by the parties, we came to the conclusion that opposite party No.1 has not provided proper treatment to the complainant and due to negligent behaviour of opposite party No.1 the complainant has to undergone another surgery and further treatment. All these act of opposite party No. 1 amounts to negligence and unfair trade practice on their part. Hence the present complaint is allowed against opposite party No.1. Opposite party No.1 is directed to pay Rs.5,00,000/- spent on the treatment. Opposite party No.1 is further directed to pay Rs.1,00,000/- her pre and post other treatment and special diet etc, with interest @9% per annum from the date of filing of present complaint till its realisation. The opposite party No.1 is also directed to pay Rs.2,00,000/- to the complainant as compensation for permanent loss to health, mental agony, pain and harassment and Rs.5000/- as litigation expenses. Complaint against opposite party No.4 stands dismissed. Admittedly opposite party No.1 is insured under the doctor Indemnity policy, so the opposite party No.1 is at liberty to claim this amount from opposite party No.4 after payment of the awarded amount to the complainant as per terms and conditions of their insurance policy."
9. The aforesaid order dated 08.11.2019 passed by the District Commission has been challenged by the appellant/opposite party No.1 by way of filing the present appeal by raising a number of arguments and grounds.
First Appeal No. 97 of 2020 9
10. Mr. David Sardana, Advocate, learned counsel for the appellant had submitted that the District Commission had completely misread, mis-understood and mis-spelt the entire case. The District Commission had not considered the advance investigation i.e. CECT (KUB) wherein removal of uterus had been admitted but the presence of uterus and bilateral ovaries were depicted. There is no evidence produced by the complainant on record which proves that ureter had been stitched. It was pleaded that the ligation of the ureter was a known-complication in such kind of surgeries. It was pleaded that the medical record as well as literature produced by opposite party No. 1(OP No.1) in this regard had been neglected by the District Commission. It was also stated that from the discharge summary/treatment details of Sir Ganga Ram Hospital, Delhi, it is clarified that there was no evidence of ligation. They had given the treatment of abscess, which had no link with the treatment performed by OP No.1. The District Commission instead of considering and appreciating the fact that in spite of rising of complications during surgery, OP No. 1 had handled the situation diligently, rather they burdened the liability of negligence upon OP No.1. The said act was against the appreciation of evidence in proper manner by the District Commission and also against the law settled by the Hon'ble Apex Court in the medical cases. In support of his contentions, he has relied upon the judgments of Hon'ble Apex Court in cases "Jacob Mathew v. State of Punjab and another", (2005) 6 SCC 1 and "V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Another", 2010 First Appeal No. 97 of 2020 10 (2) RCR (Criminal) 878. It was pleaded that the allegations levelled by the complainant had not been supported by any medical record as well as literature whereas onus lies upon the complainant to prove her allegations with proper evidence and record. It was proved by the medical literature that such type of post-operative complication was a known phenomenon and was treatable. The patient had failed to follow the instructions of follow-up so no chance was given to the appellant to treat the patient from the said complication. The uterus was removed while performing hysterectomy so the observation that right uterus was blocked/stitched had been wrongly given. Further observation of the District Commission was incorrect that the second surgery had been conducted only because first surgery had been wrongly conducted. In the written arguments, appellant pleaded that the District Commission did not consider the medical record in right manner and misread the same. The findings of the District Commission were based on superficial assumption and presumptions. The District Commission had failed to opine that there was difference between the two surgeries occurred upon the patient and the second one had no connection with the first one. It was further submitted during oral arguments that the patient once discharged on 18.04.2017, never came back for any complaints/follow-up as advised by the Doctor. The appellant has placed on record the medical literature to support his contentions. The appellant-Doctor appeared in person to narrate the circumstances of treatment and her part of arguments. First Appeal No. 97 of 2020 11
11. On the other hand, learned counsel for respondent No.1 had submitted that the complainant was admitted with the appellant/opposite party No. 1 for normal delivery, however, the appellant-Doctor forced her to undergo caesarean section delivery. During surgery her condition deteriorated and extreme bleeding occurred so the Doctor performed postpartum hysterectomy. Due to wrong surgery by the Doctor, constant pain started in the stomach of the complainant. Ultrasound/CT scan report clearly showed that there was some negligence while performing PPH surgery by the appellant- Doctor. The Doctor had not conducted the surgery with care & caution. Due to said act, there was injury to the right ureter during hysterectomy. The District Commission had thoroughly considered all these facts and passed a detailed, well-reasoned order, clearly pointing out the deficiencies of the appellant/OP No.1-Doctor. It was prayed that the appeal of the appellant is an abuse to harass the complainant, who had already suffered lot and prayed for dismissal of the same.
12. Appellant/OP No.4-Insurance Co. averred that complaint against it had been dismissed and no appeal is filed by the complainant against that order, therefore, there is no liability upon it to pay any amount. However, the District Commission gave the liberty to the appellant to claim the amount from OP No.4. As per the policies in question obtained by the appellant, OP No. 4-Ins. Co. is only liable to indemnify if any act of the appellant was proved as wrong and third party legal liability occurred.
First Appeal No. 97 of 2020 12
13. We have heard the arguments of learned counsel for the parties and have also carefully perused the impugned order passed by the District Commission, written arguments submitted by the parties and all the relevant documents available on the file. We have also gone through the medical literature as well as judgments cited by the appellant.
14. Admittedly the patient Ms. Anshul approached opposite party No. 1 for her delivery on 08.04.2017. The Doctor after checking her condition/the foetal distress (fetal heart rate) decided to conduct caesarean section surgery (LSCS) after taking due consent from the family members of the patient. The notes of the Doctor on page 4 of Ex.OP-1/3 has been mentioned as "planned for emergency LSCS in view of fetal distress after written consent". After 15-20 minutes of the surgery, the patient complained of uneasiness and there was excessive PV bleeding. The notes of the Doctor on the aforesaid exhibit had been referred as "restlessness, PV bleeding, compression done, BP falling, meaning thereby the Doctor initially tried to control the bleeding by giving medication/compression but later decided to take her to the OT for further management. When all methods of treatment failed, the Doctor (OP No.1) informed the family that in the said situation to save the life of the patient, she had to conduct immediate hysterectomy i.e. removal of uterus. The family members gave their consent for the said operation (page 7 of Ex.OP- 1/3). The hysterectomy was successful. Next day the patient complained of pain in abdomen, then the Doctor prescribed pain First Appeal No. 97 of 2020 13 killer. The patient took the pain killer for 3-4 days but the pain still persisted. USG Scan of whole abdomen was carried out in the OP No.1-Hospital on 17.04.2017. In the said ultrasound report, it was diagnosed as "right renal and right ureteric calculus with back presser changes". She was discharged on 18.04.2017 from OP No.1-Hospital (Ex.OP-1/3, pages 1 to 16). She underwent another ultrasound (Ex.C-22) on 25.04.2017 under the supervision of Dr. Ajay Bhura, MBBS MD (Radio-Diagnosis) and the observations of the said Doctor are as under;-
"Kidneys: - Bilateral kidneys are normal in size and position. CMD is well maintained. Two calculi of size ~ 5 mm are seen involving right kidney with right sided mild to moderate hydroureteronephrosis. A ~ 4mm calculus is seen involving middle calyceal system of left kidney without any caliectasis. Opinion: USG features are suggestive of - Small right renal calculi with right sided mild to moderate hydroureteronephrosis.
Tiny left renal calculus."
In the common terminology there were two stones in the right kidney and one stone in the left kidney. Hydroureteronephrosis is an obstruction in the urinary tract that causes ureter and kidney to become enlarged. She was treated for pain by Dr. Vaneet Loona but still she did not recover from her pain. Then the patient went for CECT KUB i.e. CT Scan on 05.05.2017 before Delhi Medicos (Ex.C-
21) in which the highlighted report mentioned is as under:-
"Right Kidney is normal in position and shows moderate hydronephrosis with dilated ureter till the pelvic region approx. 5 cm proximal to the VUJ. There is moderate perinephric fluid collection seen. On delayed phase perinephric collection is seen communication with the renal collecting system with active contrast leak seen through a small anterior defect in the lower calyx.First Appeal No. 97 of 2020 14
There is moderate perinephric fat stranding seen with thickening of the anterior and posterior renal fascias.
There is an irregular peripherally enhancing lesion of size 63 x 37 x 68 mm seen in the pelvis with central CT attenuation value of 30-40 HU."
In the common language, the above report means that there was collection of fluid in the right kidney. The said Scan also reported "Uterus and bilateral ovaries are normal". This fact has been contested by OP No.1 as uterus was removed during second operation.
15. Subsequently, the patient approached Sir Ganga Ram Hospital, New Delhi where she got admitted on 30.05.2017. The diagnosis and clinical history in the said report is as under:-
"Diagnosis Right Ureteric Injury with vault prolapse status post right PCN."
Clinical History History:
25 years old female came with complaints of right flank pain since 2 days and vomiting multiple episodes since 1 day.
No complain of hematuria. Past history of hysterectomy on 8th April for ?PHH with injury to right ureter. Now admitted here for further management."
At Sir Ganga Ram Hospital on 31.05.2017 another Abdominal Ultrasound was conducted and the report of the said Ultrasound is as under:-
"ABDOMINAL ULTRASOUND The liver shows a normal homogeneous echotexture without any hypo or hyperechoic masses, abscesses or cysts. Liver is enlarged in size (measures approximately 16.8cms). Hepatic veins are normal and diameter of portal vein is First Appeal No. 97 of 2020 15 10.6mm. There is no dilatation of the intrahepatic biliary tree and the common hepatic duct Gall Bladder shows norml walls and lumen. No calculus is seen.
Common duct is 2.8mm in diameter.
Pancreas has normal echopattern.
Both kidneys appear normal in size, shape and echotexture. Right kidney measures 13.0x4.3cms. Left kidney measures 11.6x4.0cms. There is no dilatation of pelvicalyceal system or calculi seen on either side.
Spleen is enlarged in size and measures 12.1cms. Echotexture is homogenous.
No ascites is seen.
Right adnexa shows heterogeneous complex are of size 43x35x20mm (volume 16ml), showing increased vascularity along the periphery. The lesion shows internal cystic component with low level echoes. Right ovary is not visualized separately.
Size of left ovary is 18x18x11mm (volume 2ml) Left adnexa is clear.
No evidence of free fluid is seen.
Impression: Ultrasound findings reveal hepatosplenomegaly with right adnexal complex mass lesion -? Tubo-ovarian mass (likely infective etiology)."
16. Subsequent to the aforesaid Ultrasound, treating Doctor at Sir Ganga Ram Hospital decided to conduct surgery and the date was fixed on 01.06.2017 but on the same night the complainant suffered the problem of vomiting and fever, she was shifted to Emergency Ward and on 03.06.2017, her surgery was conducted. She was shifted to ICU post surgery and lateron to the ward. She was discharged from the said Hospital on 06.06.2017. In the said Hospital, the Doctors had adopted the following procedure:-
"OPERATIONS/PROCEDURES 03/06/2017 Right robot assisted ureteric re-implantation done under GA.
Findings:
Abscess present at vault of vagina.
Dehisence of vaginal vault present.
Right end of vaginal vault and lower end of right ureter were part of phlegmon.First Appeal No. 97 of 2020 16
Right ureter mildly dilated.
Vaginal vault repair done in 2 layers.
Psoas hitch done.
Modified Lisch-Gregoir ureteric re-implantation done over 6/26fr DJ stent.
CLINICAL SUMMARY Condition of patient at time of discharge is satisfactory with PCN Foley in situ."
The above said sequence of events are not in dispute.
17. The contentious issues before us are:
(1) Whether the caesarean section (LSCS) conducted on the patient was an unfair trade practice?
(2) Whether the Peripartum Hysterectomy i.e. hysterectomy conducted within 24 hours of delivery on the patient due to PPH i.e. post-partum hemorrhage was an act of medical negligence?
(3) Whether the stitching of ureter as alleged by the patient/complainant during the aforesaid Hysterectomy was also an act of medical negligence?
18. From the medical notes of the treating Doctor at Nagpal Hospital (Ex.OP-1) it is clear that the caesarean section of the patient was conducted because of fetal (foetal) distress, meaning thereby that the treating Doctor tried to perform her duty of saving the life of unborn child. After the caesarean was conducted, there was extreme PV bleeding, which the Doctor tried to control by giving medication, then tried compression and other methods but when none of them was successful, she got a written consent of the family members of the patient for removal of uterus as per the protocol mentioned in the medical literature. Post-partum hemorrhage (PPH) is an episode of First Appeal No. 97 of 2020 17 severe bleeding after delivery. It can occur when the uterus does not contract enough after delivery i.e. uterine atony in medical terms. It's a serious complication that can cause life threatening blood loss. It is therefore clear that the hysterectomy was conducted by the treating Doctor after the assessment of serious condition of the patient. It is alleged that during this peripartum hysterectomy, the right ureter of the patient was stitched, which lead to blockage of urine and consequent pain in the abdomen of the patient. The consequence of stitching of right ureter and other problems were set- right by the Doctors at Sir Ganga Ram Hospital, Delhi.
19. Medical literature for the above said known complications of hysterectomy has been perused. As per the medical literature on Hysterectomy: A leading cause of iatrogenic ureteric injuries in obstetric and gynaecologic surgeries, it has been found that there can be ureteric injury. Although ureteric injury is quite rare in obstetric and gynecological surgery but it is still a reality. Most of these injuries occur at the time of hemostatic suturing, when sutures are placed at the side of the uterus during hysterectomy especially when bleeding is excessive and blind clamps are applied to stop the bleeding. These injuries occur as the ureters run close to the field of dissection and availability of limited surgical space. It is apparent from the record that OP No.1-Doctor had to conduct emergency medical surgery to save the life of the patient and during this surgery her right ureter was slightly injured. Injury was observed in the report of the Doctor of Sir Ganga Ram First Appeal No. 97 of 2020 18 Hospital, Delhi. This surgery conducted by OP No.1-Doctor was a well-intentioned surgery, necessary to save the life of the patient and is contrary to the allegations of the complainant that it lead to severe complications. If there is a choice of saving the patient and a treatable injury caused during surgery, it cannot be termed as medical negligence. It is a settled principle that it is for the Doctor, who is giving the treatment to see what treatment can be beneficial to the patient.
20. The contention of OP No.1-Doctor that the patient never came back to her for a follow up treatment, is also apparent from the documents placed on the file by the complainant, OP No.1 and also from the sequence of events. If the patient had gone back to OP No.1-Doctor and had discussed the complaint of pain in her stomach, post-surgery then the OP No.1-Doctor would have surely treated her or would have advised her further course of action.
21. Besides going through the medical literature, documents available on file, it clearly transpires that the Doctor has done only those things which were urgently required to save the life of the patient at that time. Therefore, from the above circumstances it is clear that conducting of caesarean section, stitching of ureter and thereafter conducting of pari-pertum hysterectomy within 24 hours of delivery upon the patient were necessary acts, which were required to save the life of the patient, therefore, these act of the OP No.1-Doctor cannot be termed as medical negligence. The Hon'ble Supreme Court in the case of "Jacob Mathew v. State of First Appeal No. 97 of 2020 19 Punjab and another", (2005) 6 SCC 1 observed that human body and medical science, both are too complex, to be easily understood..........depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability....." Further held that simple lack of care, error of judgment or accident is not proof of negligence on part of medical professional. Failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence. It was also observed that res ipsa loquitur is only rule of evidence and operates in domain of civil law especially in cases of Torts and helps in determining onus of proof in actions relating to negligence. In "Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others", 2009(4) RCR (Criminal) 1 it was held by the Hon'ble Apex Court that mere accident is not evidence of negligence.
22. The Hon'ble Apex Court in the case of "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 1 (2010) CPJ 29 (SC) have discussed the complete medical law held that 'in case the Doctors have attended the patient with utmost care, caution and skills and with devotion and dedication then the Doctor, who performed the operation had reasonable decree of skill and knowledge and adopted the procedure which in their opinion as in the best interest of the patient then the Doctor cannot be held First Appeal No. 97 of 2020 20 responsible for negligence.' Further in paras No. 76, 77, 78 & 79 of the said judgment held as under:-
"76. A mere deviation from normal professional practice is not necessarily evidence of negligence.
77. In Jacob Mathew's case (supra), this Court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. The Court further observed as under:
"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This Court in Jacob Mathew's case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
79. Doctors in complicated cases have to take chance even if the rate of survival is low."
23. Therefore, it is settled law that if the Doctor who had attended/operated the patient with utmost care, caution and followed First Appeal No. 97 of 2020 21 the procedure accepted as proper in medical field, which in his/her opinion is in the best interest of the patient then the Doctor cannot be held responsible for negligence and in the present case as observed above, the Doctor had acted in a required manner, therefore, treatment of the Doctor cannot be termed as medical negligence/unfair trade practice/deficiency in service. However, during the surgery ureter of the patient was slightly injured, which is an unfortunate incident and an admitted fact in this case.
24. In the above terms, it can be safely deduced that OP No.1-Doctor treated the patient as per the medical protocol, with best of intentions and the episode of stitching of right ureter was an outcome/complication of Peripartum Hysterectomy conducted as an emergency measure to save the life of the patient. Therefore, the Doctor is exonerated from the allegations of medical negligence.
25. The complainants had submitted the bills of the amount incurred by her on further medical treatment taken after her discharge from OP No.1-Hospital. There is no doubt that the complainant/respondent No.1 had to face a difficult situation after the said discharge from OP No.1-Hospital. To recover from the said problem, the complainant had to move two different locations/stations for taking further treatment and spent huge amount on the same. She had also undergone another surgery during this period to treat the injury to the right ureter. The perusal of said bills First Appeal No. 97 of 2020 22 makes it clear that the respondent No.1/complainant had actually incurred expenses in lacs. Due to above said injury, as the complainant had spent more amount on treatment, therefore, she is entitled to claim the said amount.
26. The observations of the District Commission that it was a failure on the part of doctors and supporting staff to adhere to the ordinary level of skill and diligence possessed and exercised at the same time, are wrong and against the documents on record in the case file. Keeping in view the aforesaid observations, the documents available on the file and the aforesaid judgments of the Hon'ble Apex Court, we find force in the arguments raised by the counsel for the appellant that the OP No.1-Doctor had undertaken only those medically recognized measures which were necessary to save the life of the patient. However, as discussed above, during such surgery slight injury suffered to the ureter of the patient, was an outcome of the surgery conducted in emergency situation as the patient was bleeding heavily. The OP No.1-Doctor had fulfilled her primary duty to save the patient, the injury to ureter was very much treatable. Hence, no negligence can be attributed to OP No.1-Doctor, moreover, the slight injury to the ureter was not an intentional act. However, in the present circumstances, patient/ complainant is entitled to claim the expenses incurred by her for further treatment/management. The Doctors had obtained Professional Insurance Policy (in case of need arising) to safeguard themselves from paying the amount of penalty from their own pockets, when liability is fixed upon them First Appeal No. 97 of 2020 23 of the amounts awarded against them as claimed by the patient/his family members due to any mishappening occurred during treatment.
27. Sequel to the above, we are of the opinion that the order passed by the District Commission is not based on proper appreciation of the documents and it requires modification. As discussed above, OP No.1-Doctor/Hospital was not negligent in treating the patient. By conducting emergency hysterectomy/surgery, Doctor was successful in saving the life of the patient and fulfilled her primary duty. Accordingly, the appeal of the appellant is partly allowed and the order of the District Commission is modified for the aforesaid reasons to the extent that OP No.1-Doctor/Hospital was not negligent in treating the patient, therefore, she is exonerated from the said findings/allegations. The directions of the District Commission regarding making payment of an amount of Rs.2,00,000/- as compensation is set-aside as already the amounts of Rs.5,00,000/- and Rs.1,00,000/- awarded by the District Commission are appropriate amounts to compensate the complainant. Remaining directions passed by the District Commission are upheld.
28. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
29. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The respondent No.1/complainant may First Appeal No. 97 of 2020 24 approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER October 10, 2023.
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